State v Turaga [1993] FJHC 68; Hac0025d.1992s (18 August 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 25 OF 1992

STATE

v.

1. TANIELA TURAGA
2. PAULA LALAKAI

MANSLAUGHTER: Contrary to Section 198 of the Penal Code Cap. 17

Ms. L. Laveti for the Prosecution
Mr. T. Fa for both Accused Persons

RULING

The prosecution has closed its case that is to say it has called all the evidence that it seeks to place before the Court in support of the charge of Manslaughter against both accused.

Learned Defence Counsel submits that the 1st accused Taniela Turaga has no case to answer on the basis of the evidence led by the prosecution.

In an offence of Manslaughter the prosecution at this stage must lead some prima facie evidence to show amongst other things, that the 1st accused committed an unlawful act against the deceased.

To do that the prosecution called an eye witness Susana Duaibe who testified that on the night in question she saw a person by the name of "Taniela" or "Dan" punch the deceased on the jaw causing him to fall onto the road and although she said the person was in Court she did not identify him or point him out. This was a serious lacuna in her evidence and was clearly appreciated by State Counsel who subsequently applied to have Susana recalled so that she could identify who the person "Taniela" or "Dan" was that she had earlier testified about.

The State's application was granted but unfortunately Susana has not been called. Learned State Counsel however seeks to fill that "lacuna" by relying on the evidence of Ragasawalu Soqo who arrived at the scene soon after the fight was over and took the deceased to hospital. He said the 1st accused had spoken to him at the scene telling him to take the deceased to hospital. At most if his evidence is accepted this witness establishes that the 1st accused was present at the scene when he took the deceased to hospital.

Is that however some evidence that the 1st accused committed an unlawful act upon the deceased? Clearly standing alone it is not. Does it provide the necessary "missing link" in Susana's evidence? Again I would have to say it does not.

The evidence is clear that a number of persons were involved in the exchange of blows and that a crowd had gathered. There is not a shred of evidence that there was only one person amongst the crowd of combatants who was called "Dan" or "Taniela" or of the size and build of the 1st accused.

The 1st accused as Counsel correctly points out has consistently denied any involvement in the incident nor is he charged with merely being present at the scene.

Then learned State Counsel refers to the possible falsehood in the 1st accused's denials in his police interview as being of some circumstantial relevance. I cannot agree. A person may falsely deny involvement in a brawl for a host of innocent reasons and in any event the falsity of the 1st accused's denial depends on an acceptance of Soqo's evidence.

Further to be relevant circumstantial evidence must point irresistibly to only one reasonable conclusion and in this case it must be that the "Dan" that spoke to Soqo must be one and the same person as the "Dan" who Susana saw punch the deceased on the jaw. Only Susana could have bridged that gap, and she failed to do so.

I hold that the prosecution has failed to call any evidence to support a vital ingredient in the offence of Manslaughter with which the 1st accused has been charged and accordingly I record against the 1st accused a finding of not guilty.

The 1st accused is acquitted and is forthwith released from further attending this trial.

(D.V. Fatiaki
JUDGE

At Suva,
18th August, 1993.

HAC0025D.92S